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I've been boiling about this for a few weeks. The simmer started when Judge Lefkow's family members were killed and the fringey-right started crowing about it, while trying to say it was not only not their fault, but people were wrong to look at them suspiciously.

Since people like Hal Turner as Orcinus points out, not only say things about judges needing to look over their shoulders, but they get treated well by the Republican Party the fringe is moving into the "Big Tent."

That's odious enough, so too is the part of the party trying to side-step little things like the First Amendment by trying to remove theocratic laws from the purview of the court. The Constitution Restoration Act

The nut of the act is,
Sec. 1260. Matters not reviewable
"Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government."

and

SEC. 201. INTERPRETATION OF THE CONSTITUTION.
In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.


Scary. This has been introduced before, and it failed to leave committee, which is what will probably happen now. That is, to some degree what the co-sponsors (which number 23) probably want. They get to pose for the fringie elements of their constituency, without having to pony up a vote which might piss the rest of us off.

So it might be better for this nonsense to see the light of day, that the snake-oil salesmen be forced to drink their own potion, or be shown up for the frauds they are. On the off (and right now it's a very off chance) the foul thing passes, well it will be ruled unconstitutional (there are ways in which it can be brought before a court, diversity being the easiest).

this time around the author added the second clause That is the one I fear most, because it calls for an ossification of the law.

England has the Common Law, which is an ever changing thing, and might be completely replaced by a single act of Parliament (they could make the Monarch absolute again, should they so choose). We have a Constitution, a more rigid document, but not absolute.

There is a parallel, in my opinion, in the Old Testament, and how it applies to Orthodox Jews. The Law is defined. There is no question about what it says. God ordained it, and meant Man to follow it. But Man is fallible, and cannot completely apprehend the fine turns of God's meaning, so they have the Talmud. A bit more than 2000 years of case law to refine the application (not the meaning) of the law.

The Bible does not address cars, nor electricity, nor any of a vast host of modern inventions. Does a cotton-poly blend violate the prohibition on the mixing of unlike objects? Is electricity fire? If it is, how is it kindled (since one cannot light a fire on the Sabbath this is a crucial thing to ascertain)?

The Talmud deals with this, and is still growing, because the problems of people never end.

We have the same, and we have been arguing those cases for more than 200 years. This law would cast all that aside. Dred Scott v Sanford becomes as dead as John Brown.

The States become completely autonomous save for those laws which the Feds specifically apply to them.

It, in short, invalidates the principles of Federalism and returns us to the Articles of Confederation; which worked so well we disposed of them.

The leadership of the party has gotten on board with this. Tom Delay (Speaker of the House) has said "I believe the judiciary branch of our government has overstepped its authority on countless occasions, overturning and in some cases just ignoring the legitimate will of the people.” as well as, “The time will come for the men responsible for this to answer for their behavior, but not today."

His most amazing claim was the laying of blame for the aforementioned riding over the will of the people on the Congress , “"I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that's nowhere in the Constitution is that Congress didn't stop them. The reason we had judicial review is because Congress didn't stop them. The reason we had a right to privacy is because Congress didn't stop them."

So he seems to think Art. III of the Constitution, creating a Supreme Court is immaterial, as well as that pesky little Bill of Rights.

Rights are the heart of this issue, they have been since Nixon started railing about “strict construction.”

The question before us is this, “Is the Constitution prescriptive, or proscriptive?” That is, does it tell us what rights we have, or does it list only those rights we cannot lose?

The language of the Bill of Rights is proscriptive. It details those things the Executive, and the Legislative cannot take away, and the Judiciary is set to keep them from doing it, which is why judges are appointed for life.

Which means the Gov’t has to show a legitimate interest before it can limit a right, even those not enumerated.

That is the nub of the Ninth Amendment, the one Madison felt essential lest, by enumerating particular exceptions to the grant of power, it would disparaged those rights which are not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a Bill of Rights into the system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

Alexander Hamilton said much the same, “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” (Federalist Papers 84)

There are those, as with Kurt Lash,, Texas Law Review, Vol. 83, No. 2, December 2004, who argue the 9th isn’t meant to protect the rights of citizens, but rather is part, and parcel of the 10th, Obscured by the contemporary assumption that the Ninth Amendment is about rights while the Tenth Amendment is about powers, the historical roots of the Ninth Amendment can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power. (I think Lash errs in his basic premise holding the only reason Madison intended the amendment was to appease states and reduce the encroachment of the Feds on them. The 10th does that. The Ninth is meant to see the same encroachment isn’t done piecemeal to individuals.

Madison’s private correspondence to Jefferson seems to contradict this, "My own opinion has always been in favor of a Bill of Rights; provided it is so framed as not to imply powers not meant to be included in the enumeration.... I have not viewed it in an important light, because there is great reason to fear that a positive declaration of some of the most essential rights cannot be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely to ever be by an assumed power.”

So the people are reserved those rights and powers not expressly given to the Feds. Privacy is perhaps greatest among them. The Declaration of Independence made the decisions to raise Liberty over Property and the principles of the Nation certainly are that, so long as one doesn’t infringe another, one may do as one likes.

But Privacy, or Speech,Religion, Marriage, or any other right being, “created” by the courts is a red-herring; a myth. The People hold those rights. Unless the Government has a compelling interest in the limit of them (which one can argue for firearms, to property; in the pursuit of information leading to a crime, and to property, by way of taxes; in that we demand the Gov’t provide services and somehow not only the services, but the labor of those who provide them must be paid for). The questions we face are always, how many of our rights is the Gov’t, and its agents, allowed to infringe, and when they are so allowed, to what degree.

That is the Court’s job. Abusing judges for doing what they are told to do, even when we disagree, is a moral wrong. It violates the social contract. The majority is not always right, and cannot, by brute force be allowed to run roughshod over the minority. Worse would be allowing a vocal minority to take advantage of beating the drum and rending their hair to appear they are being abused and thus impose a limit to others freedoms because they disapprove of them.

Making the Judiciary a subservient branch of Government (which is what the DeLays, and the Shelby’s, and; though not so obviously, the Frists, want) would be the unmaking of the Nation.

I will close this (already long enough) with some words from Alexander Hamilton, According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.” but that is the beginning, there are words which have been left out of other people’s quotations of Federalist Papers 78.

“This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

… A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute….






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